Which Tennessee agency has authority to authorize off-highway vehicle (OHV) use in state forests, and can it do so by emergency rule?

Subject

Opinion No. 11-16, Off Highway Vehicle Use in State Forests, February 15, 2011

Plain-English summary

The Tennessee Off-Highway Vehicle Act of 2004 (Tenn. Code Ann. § 70-9-104(5)) prohibits OHV use in certain protected lands, including state forests, "unless expressly approved for such use on or before the effective date of May 10, 2004." After May 10, 2004, OHV access is allowed only "if access is allowed by rule or regulation." The Act delegates administration of the OHV program to the Director of the Tennessee Wildlife Resources Agency (TWRA) under § 70-9-104(1), but does not specify which agency must promulgate rules for OHV access to state forests.

A state senator asked three questions:

1. Which agency approves OHV use in a state forest? The Department of Agriculture's Division of Forestry. The AG read the legislative history together with the statutory framework. The State Forester (under the Commissioner of Agriculture, Tenn. Code Ann. § 11-4-301(d)(10)) has the duty and responsibility of protecting and managing state forests; the State Forester (with the approval of the Commissioner of Agriculture) may promulgate rules to implement the Forestry Code (§ 11-4-301(d)(18)); and the State Forester supervises the Division of Forestry (§§ 11-4-401, -402). The Division of Forestry had already promulgated Tenn. Comp. R. & Regs. 0080-7-1-.06 in 2001, allowing limited use of off-road vehicles in state forests, and re-promulgated a rule on the same subject in 2007. Under the canon that the legislature is presumed to know the existing state of the law (Equitable Life Assurance Company v. Odle, 547 S.W.2d 939, 941 (Tenn. 1977)), the 2004 OHV Act left the Division's pre-existing regulatory authority over OHV use in state forests intact.

2. What form must approval take? Rules and regulations. Tenn. Code Ann. § 70-9-104(5) is explicit: after May 10, 2004, access is allowed only by rule. Before that date, the Division of Forestry was already operating by rule, so the same form has applied throughout.

3. Can approval be granted by emergency rule? Yes, if the criteria for emergency rulemaking under Tenn. Code Ann. § 4-5-208(a) are met. Agencies authorized to promulgate rules do so under the Uniform Administrative Procedures Act (Tenn. Code Ann. §§ 4-5-201 to -228), and the UAPA's emergency-rule provision applies the same way to the Division of Forestry as it does to any other rulemaking agency.

The functional takeaway: even though the 2004 OHV Act made TWRA the lead agency for the statewide OHV program, the carve-out for state forests preserved the Division of Forestry's existing authority over OHV access on those lands. The Division decides; the Division acts by rule; and the UAPA emergency-rule procedure is available when the circumstances warrant it.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does the OHV Act delegate the statewide OHV program to TWRA but state-forest decisions to the Division of Forestry?

Because the Act creates a general OHV program (§ 70-9-102) but does not displace existing agency authority over specific land categories. The State Forester and Division of Forestry, under the Department of Agriculture, manage state forests. TWRA manages wildlife management areas and refuges. State parks are managed by their own agency. The OHV Act prohibits OHV use across all those land categories under § 70-9-104(5), and then provides an opening for access "by rule." The AG concluded the agency that manages each land category is the one with rulemaking authority over OHV access on that land.

Did the Division of Forestry's pre-2004 rule already satisfy the OHV Act's grandfather clause?

Yes. Tenn. Comp. R. & Regs. 0080-7-1-.06, promulgated in 2001, allowed limited use of off-road vehicles in state forests. That rule was in place when the OHV Act became effective on May 10, 2004, so it qualified under the Act's grandfather provision ("expressly approved for such use on or before the effective date of May 10, 2004"). The Division repealed and replaced the rule in 2007, and the replacement rule continued to allow off-road vehicle use on certain unpaved roadways and designated areas.

How does the legislature's awareness of existing rules matter to the analysis?

Under Equitable Life Assurance Co. v. Odle, 547 S.W.2d 939, 941 (Tenn. 1977), the legislature is presumed to know the state of the law on the subject under consideration at the time it enacts legislation. So when the General Assembly enacted the OHV Act in 2004, it is presumed to have known that the Division of Forestry was already regulating OHV use in state forests by rule. Because the OHV Act did not expressly alter that authority, the AG read it as preserving the status quo: the Division continues to regulate OHV access on state forest land.

What does it take to issue an emergency rule?

Tenn. Code Ann. § 4-5-208(a) sets out the criteria. Emergency rulemaking is available when standard rulemaking would not address an imminent need (the criteria typically involve immediate threats to public health, safety, or welfare). If the Division of Forestry can show the criteria are met for a specific OHV-access decision, it can issue an emergency rule under the UAPA process. If the criteria are not met, the standard rulemaking process applies.

Does this affect OHV access on TWRA-managed wildlife management areas, state parks, or state natural areas?

The opinion focuses on state forests. Tenn. Code Ann. § 70-9-104(5) lists four protected land categories (wildlife management areas and refuges, state forests, state parks, and state natural areas), but the AG reasoned that each agency with land-management authority over its category has the corresponding rulemaking authority over OHV access. State parks and state natural areas are managed by different agencies, with their own rulemaking authority.

Background and statutory framework

The Tennessee Off-Highway Vehicle Act of 2004 (codified at Tenn. Code Ann. §§ 70-9-101 et seq.) sets up a statewide OHV program "to manage OHVs to maximize economic and recreational opportunities, to protect the environment, and to ensure that adequate revenue is generated for such purposes." Tenn. Code Ann. § 70-9-102. The Director of TWRA is charged with establishing and implementing the OHV program. Tenn. Code Ann. § 70-9-104(1). The Wildlife Resources Commission is authorized to promulgate rules and regulations to effectuate the purposes of the Act. Tenn. Code Ann. § 70-9-105(3).

The Act's central restriction is in § 70-9-104(5):

[OHV use is prohibited in] wildlife management areas and refuges used solely for hunting, fishing, or other TWRA-related activities; state forests; state parks; and state natural areas[, unless] expressly approved for such use on or before [May 10, 2004], or, after such date, [access is] allowed by rule or regulation.

May 10, 2004 is the effective date of the OHV Act. 2004 Tenn. Pub. Acts 622, § 11. The Act does not specify which agency must adopt rules to allow OHV access on each category of restricted land.

The state-forest framework is in Title 11, Chapter 4:

• Tenn. Code Ann. § 11-4-301(d)(10): the State Forester, under the Commissioner of Agriculture, has the duty and responsibility of protecting and managing lands designated as state forests.
• Tenn. Code Ann. § 11-4-301(d)(18): the State Forester, with the approval of the Commissioner, may promulgate rules and regulations to implement the Forestry Code.
• Tenn. Code Ann. §§ 11-4-401, -402: the State Forester supervises the Division of Forestry, a division of the Department of Agriculture, which develops, implements, and promotes forestry programs and policies.

The Division had already promulgated Tenn. Comp. R. & Regs. 0080-7-1-.06 in 2001, allowing limited off-road vehicle use in state forests. The Division repealed that rule in 2007 and issued a new rule on the same subject.

The AG's interpretive moves:

1. Presumption that the legislature knew the regulatory status quo. Equitable Life Assurance Co. v. Odle, 547 S.W.2d 939, 941 (Tenn. 1977). When the 2004 OHV Act was enacted, the Division of Forestry's 2001 rule was already in force. The General Assembly is presumed to have known that.

2. Non-displacement of existing agency authority. Because the OHV Act did not expressly assign rulemaking authority over OHV access on state forest land to TWRA, and because the State Forester's general rulemaking authority over state forests under § 11-4-301(d)(18) was pre-existing, the AG concluded the OHV Act did not change the Division's authority.

3. Default UAPA process. All rulemaking by Tennessee agencies, including emergency rulemaking under § 4-5-208(a), goes through the Uniform Administrative Procedures Act (Tenn. Code Ann. §§ 4-5-201 to -228). The Division of Forestry's rulemaking is no exception.

Citations

• Tenn. Code Ann. § 70-9-102 (purpose of OHV program)
• Tenn. Code Ann. § 70-9-104(1) (TWRA Director administers OHV program)
• Tenn. Code Ann. § 70-9-104(5) (prohibition with exceptions for grandfathered uses and rule-authorized access)
• Tenn. Code Ann. § 70-9-105(3) (Wildlife Resources Commission rulemaking)
• Tenn. Code Ann. § 11-4-301(d)(10) (State Forester's duties)
• Tenn. Code Ann. § 11-4-301(d)(18) (State Forester rulemaking)
• Tenn. Code Ann. § 11-4-401 (Division of Forestry)
• Tenn. Code Ann. § 11-4-402 (Division of Forestry programs)
• Tenn. Code Ann. §§ 4-5-201 to -228 (Uniform Administrative Procedures Act)
• Tenn. Code Ann. § 4-5-208 (emergency rulemaking)
• Tenn. Code Ann. § 4-5-208(a) (criteria for emergency rule)
• Tenn. Comp. R. & Regs. 0080-7-1-.06 (Division of Forestry OHV rule)
• 2004 Tenn. Pub. Acts 622, § 11 (OHV Act effective date)
• Equitable Life Assurance Company v. Odle, 547 S.W.2d 939 (Tenn. 1977)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-016.pdf

Original opinion text

Off Highway Vehicle Use in State Forests

QUESTIONS

Tenn. Code Ann. § 70-9-104(5) prohibits the use of off-highway vehicles (OHV) in state forests and other areas unless expressly approved for such use on or before the effective date of May 10, 2004. After the effective date, the statute allows for access if specified by rule or regulation.

1. Which state agency or agencies must give their approval in order to allow recreational OHV use in a state forest?

2. In what form must any required approval be provided?

3. If any approval is required to be provided in the form of a rule, does the agency that must provide that approval have the authority to do so by means of adopting an emergency rule?

OPINIONS

1. The Department of Agriculture's Division of Forestry must give its approval to allow OHV users access to state forests.

2. After May 10, 2004, the approval to allow OHV users access to state forests must be through rules and regulations. Prior to that date, rules and regulations were also used by the Division of Forestry to approve OHV use in state forests.

3. If the Division of Forestry can meet the criteria for emergency rulemaking set forth in Tenn. Code Ann. § 4-5-208(a) (Supp. 2010), then it may provide approval for OHV use in state forests through an emergency rule pursuant to the Uniform Administrative Procedures Act.

ANALYSIS

1. The Tennessee Off-Highway Vehicle Act of 2004 (OHV Act) creates a program to manage OHVs to maximize economic and recreational opportunities, to protect the environment, and to ensure that adequate revenue is generated for such purposes. Tenn. Code Ann. § 70-9-102. The Director of the Tennessee Wildlife Resources Agency (TWRA) is charged with establishing and implementing the OHV program. Tenn. Code Ann. § 70-9-104(1). The OHV Act expressly prohibits OHV use in wildlife management areas and refuges used solely for hunting, fishing, or other TWRA-related activities; state forests; state parks; and state natural areas. Tenn. Code Ann. § 70-9-104(5). However, OHV use is permitted in those areas in two instances: first, if there has been express approval for such use on or before May 10, 2004; and second, after May 10, 2004, if access is allowed by rule or regulation. Id. May 10, 2004, is the effective date of the OHV Act. See 2004 Tenn. Pub. Acts 622, § 11.

The General Assembly has created the position of State Forester, who serves under the Commissioner of Agriculture and who has the duty and responsibility of protecting and managing lands designated as state forests. Tenn. Code Ann. § 11-4-301(d)(10). The State Forester, with the approval of the Commissioner of Agriculture, may promulgate rules and regulations to implement the Forestry Code. Tenn. Code Ann. § 11-4-301(d)(18). The State Forester supervises the Division of Forestry, a division of the Department of Agriculture, which develops, implements, and promotes forestry programs and policies. Tenn. Code Ann. §§ 11-4-401 and 11-4-402.

The Division of Forestry promulgated Tenn. Comp. R. & Regs. 0080-7-1-.06, which allows for the limited use of off-road vehicles in state forests. This rule was originally placed in effect in 2001. Thus, when the OHV Act went into effect on May 10, 2004, the Division already provided express approval for OHV use. Subsequently, the Division in 2007 repealed the rule and issued a new rule that still provided for the use of off-road vehicles on certain unpaved roadways and areas designated for that specific use.

Although the OHV Act gives the TWRA Director the responsibility to administer the OHV program, and authorizes the Wildlife Resources Commission to promulgate rules and regulations to effectuate the purposes of the Act, Tenn. Code Ann. § 70-9-105(3), the Act does not specify which agency must promulgate rules and regulations to allow for OHV use in state forests under Tenn. Code Ann. § 70-9-104(5). The Legislature, however, is presumed to have knowledge of the state of the law on the subject under consideration at the time it enacts legislation. Equitable Life Assurance Company v. Odle, 547 S.W.2d 939, 941 (Tenn. 1977). When the OHV Act was enacted in 2004, the Division of Forestry's rules already allowed off-road vehicle access on certain unpaved roads. The OHV Act does not change the authority of the State Forester or the Division of Forestry in this regard. Because the General Assembly is presumed to have known that the Division of Forestry was already regulating OHV use in state forests when it enacted the OHV Act, and did not alter this authority, it is the opinion of this Office that the Division of Forestry, under the Department of Agriculture, must give approval to allow OHV users access to state forests.

2. Approval for OHV use in state forests under Tenn. Code Ann. § 70-9-104(5) after May 10, 2004, must be given by rule and regulation. The OHV Act clearly states this requirement. Prior to May 10, 2004, approval for OHV use in state forests was given through rules and regulations as well. See Tenn. Comp. R. & Regs. 0080-7-1-.06.

3. Agencies authorized to promulgate rules must do so pursuant to the Uniform Administrative Procedures Act (UAPA), Tenn. Code Ann. §§ 4-5-201 to -228 (Supp. 2010). The UAPA provides for emergency rulemaking under Tenn. Code Ann. § 4-5-208 (Supp. 2010). This statute sets forth the criteria for an emergency rule. Tenn. Code Ann. § 4-5-208(a) (Supp. 2010). If the Division of Forestry can meet these criteria concerning OHV use in state forests, then it may adopt an emergency rule under the UAPA.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Associate Solicitor General

SOHNIA W. HONG
Senior Counsel

Requested by:
The Honorable Steve Southerland
State Senator
Suite 10 Legislative Plaza
Nashville, Tennessee 37243